 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Leung v. Nunes5/17/1999
ad the suit been transferred." Id. at 329. See also Filmline (Cross-Country) Prods., Inc. v. United Artists Corp., 865 F.2d 513, 520 (2d Cir. 1989); Magnetic Eng'g & Mfg. Co. v. Dings Mfg. Co., 178 F.2d 866 (2d Cir. 1950).
In a Ninth Circuit mandamus case the court granted the writ and directed that the district court vacate an order transferring the action. Sunshine Beauty Supplies, Inc. v. United States Dist. Court for the Cent. Dist. of California, 872 F.2d 310 (9th Cir. 1989). The court reasoned that, although the petitioner could appeal after final judgment in the transferee district, "the prejudice that results from an erroneous transfer order is of a type not correctable on appeal." Id. at 311. By this statement we take the court to have meant that the prejudice lies in trying the case in a forum to which it should not have been transferred.
Southern Railway Co. v. Madden, 235 F.2d 198 (4th Cir.), cert. denied, 352 U.S. 953, 77 S. Ct. 328, 1 L. Ed. 2d 244 (1956), was an appeal after final judgment against the defendants whose motion for transfer was held to have been erroneously denied. There were also trial errors. In reversing and remanding for a new trial the Fourth Circuit directed that the case be transferred, without describing any prejudice to the appellant as to the forum other than the abuse of discretion in denying transfer.
The federal cases that recognize, at least theoretically, the availability of mandamus prior to final judgment supports reversal in the instant matter. The federal mandamus cases implicitly recognize that there is prejudice in plaintiffs' being required to try their cases in forums to which they have been erroneously transferred; otherwise there would be no purpose in proclaiming and preserving the power to rectify by mandamus a true abuse of discretion before final judgment.
Further, we do not accept that the aggrieved plaintiff must show that the alleged error was result-altering in order for it to be remedied after final judgment. That is a nearly impossible standard to meet when juries are randomly selected within the competing venues. Under a standard of actual prejudice a transfer resulting from an abuse of discretion would be effectively unreviewable. That is not a desirable result from the standpoint of the "'public interest factors of systemic integrity and fairness.'" Urquhart, 339 Md. at 17, 660 A.2d at 420 (citing Odenton, 320 Md. at 40, 575 A.2d at 1238) (in turn, citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 30, 108 S. Ct. 2239, 2244, 101 L. Ed. 2d 22, 32 (1988)).
Here, we have held in Part I that the transfer was an abuse of discretion. The Nuneses seek their remedy after final judgment was entered in the wrong forum. Although the time spent by the Nuneses in the wrong forum, over their repeated objections, cannot be restored, the remedy is a new trial in the Circuit Court for Baltimore City against Leung and Commock.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE PETITIONERS.
Page 1 2 3 4 5 6 7 8 Maryland Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|